Wash v. Johnson

• Decision Date: 12 August 2003
• Docket Number: No. 02-61063.,02-61063.
• Citation: 343 F.3d 685
• Parties: Ezell WASH; et. al., Plaintiffs, Ezell Wash; Porter Shorter; Kenneth Dennis; Desmond Earl Phillips; Bobby Caldwell; Gary Moore; Jimmy Powell; Chris Boyd; Robert Price; Rudy Romero; Glendale Sones; David McGee; Richard Sims, Jr.; James Reed, Plaintiffs-Appellants, v. Robert JOHNSON, Commissioner; James Anderson; Walter Booker; W.L. Holman; Robert Armstrong; Gene Crocker; Earl Jackson; Jessie Streeter; Christopher Epps; Larry Keys; Pamely Lee; Charles Thomas; Glenn Adams; Willie Walker; Case Manager Jackson; Sam Webb; Jacqilyn Maxwell; Maud Irby; Joe Conners; Frank Grammar; Larry Hardy; John Doe(s), Liability Sureties/Bonding Companies of All Defendants, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

343 F.3d 685

Ezell WASH; et. al., Plaintiffs, Ezell Wash; Porter Shorter; Kenneth Dennis; Desmond Earl Phillips; Bobby Caldwell; Gary Moore; Jimmy Powell; Chris Boyd; Robert Price; Rudy Romero; Glendale Sones; David McGee; Richard Sims, Jr.; James Reed, Plaintiffs-Appellants, v. Robert JOHNSON, Commissioner; James Anderson; Walter Booker; W.L. Holman; Robert Armstrong; Gene Crocker; Earl Jackson; Jessie Streeter; Christopher Epps; Larry Keys; Pamely Lee; Charles Thomas; Glenn Adams; Willie Walker; Case Manager Jackson; Sam Webb; Jacqilyn Maxwell; Maud Irby; Joe Conners; Frank Grammar; Larry Hardy; John Doe(s), Liability Sureties/Bonding Companies of All Defendants, Defendants-Appellees.

No. 02-61063.

United States Court of Appeals, Fifth Circuit.

August 12, 2003.

Plaintiffs-Appellants Ezell Wash, Porter Shorter, Kenneth Dennis, Desmond Earl Phillips, Bobby Caldwell, Jimmy Powell, Christopher Conway Boyd, Robert Price, Rudy Romero, Glendale Ray Sones, David McGee, Richard Sims and James Reed, Parchman, MS, and Garry Lee Moore, Meridian, MS, all appear pro se.

John Lewis Clay, Jackson, MS, Leonard Charlton Vincent, Miss. Dept. of Corrections, Parchman, MS, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before SMITH, DeMOSS and STEWART, Circuit Judges.

BY THE COURT:

Twenty-four state prisoners filed a pro se civil rights action contesting the conditions of their confinement. The district court ultimately dismissed plaintiffs' complaint, and a notice of appeal was timely filed, purportedly on behalf of all plaintiffs, but signed only by plaintiff Desmond Phillips.

The clerk of this court advised Phillips that the appeal was proceeding as to Phillips only because his was the only signature on the notice. The non-signing appellants were sent a copy of this letter. Plaintiff Garry Moore subsequently requested that the appeal be reinstated as to all of the appellants. He argued that, under Becker v. Montgomery, 532 U.S. 757, 121 S.Ct. 1801, 149 L.Ed.2d 983 (2001), the failure to sign a notice of appeal was a nonjurisdictional defect that could be cured by correcting the omission. The clerk's office informed Moore that it was taking no action with respect to his request and directed his attention to this court's opinion in Mikeska v. Collins, 928 F.2d 126 (5th Cir.1991), holding that in cases involving multiple pro se appellants, in which the notice of appeal was signed by less than all the appellants, each non-signing appellant must file a notice of appeal within the time allowed by FED. R.APP. P. 4(a) or the appeals of the non-signing appellants should be dismissed. Moore responded that the appeals of the non-signing appellants could not be dismissed under Mikeska until the court first inquired whether those parties had an intent to appeal and because, under Mikeska, the defect in the notice of appeal could be cured by the signatures of the non-signing parties. The clerk's office responded that inquiries into the non-signing parties' intent to appeal would have been moot because, by the time the notice of appeal was docketed in this court, the time to appeal under FED. R.APP. P. 4(a) had expired.

Moore subsequently filed a motion for reconsideration of the clerk's refusal to reinstate the appeal as to all appellants. The clerk's office then notified the non-signing appellants that they had 30 days to submit a signed notice of appeal and that the issue of whether their appeals would be reinstated would be submitted to this court. Signed notices of appeal were received by all but two of the appellants.

A timely notice of appeal is a prerequisite to the exercise of jurisdiction by this court. Dison v. Whitley, 20 F.3d 185, 186 (5th Cir.1994). FED. R.APP. P. 4(a)(1) requires that the notice of appeal in a civil action be filed within 30 days of entry of the judgment or order from which appeal is taken. Any other party who wishes to appeal has 14 days after the initial notice was filed to pursue an appeal. FED. R.APP. P. 4(a)(3); see also FED. R.APP. P. 4(c)(2).

Notices of appeal are subject to the requirements of FED.R.CIV.P. 11(a). See Gonzales v. Wyatt, 157 F.3d 1016, 1021-22 (5th Cir.1998). Relevant provisions of Rule 11 provide:

(a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party.... An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

In Mikeska, we held that to be valid as to a specific appellant, a multi-party pro se notice of appeal must be signed by that appellant. Mikeska, 928 F.2d at 126. We further instructed that "when a timely filed multi-party pro se notice of appeal that fails to bear what purports to be the signature of one or more of the persons listed as appellants, the clerk of this court shall, pursuant to FED. R.APP. P. 4(a)(3), notify the non-signing appellant[s] of the right to file a notice of appeal `within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by ... Rule 4(a), whichever period last expires.'" Id. "The written notification of a party's intent to appeal, signed by the subject appellant shall be deemed timely filed if received by the district clerk or our clerk of court within the time allowed by FED. R.APP. P[.] 4(a)(3)." Id. In Carter v. Stalder, 60 F.3d 238, 239 (5th Cir.1995), the clerk's office did not give the non-signing appellants the notice required by Mikeska because it was unsure whether the notice of appeal was timely. We concluded that, after the 14-day period under Rule 4(a)(3) had expired, the non-signing appellant could not appeal, "despite the lack of Mikeska notice." Id.

Our holdings in Mikeska and Carter, however, are not able to be reconciled with the Supreme Court's Becker decision. In Becker, a state prisoner instituted a pro se civil rights action contesting conditions of confinement. 532 U.S. at 760, 121 S.Ct. 1801. Becker's timely, pro se notice of appeal contained his name on a signature line, typed, but not hand-signed. Id. at 761, 121 S.Ct. 1801. Becker's appeal was docketed, and a briefing schedule was set. Id. Some six months later, on its own motion, the Sixth Circuit dismissed the appeal for lack of jurisdiction because of the want of a handwritten signature on the notice of appeal. Id. No court officer had earlier called Becker's attention to the need for a signature, nor had Becker been afforded an opportunity to cure the defect. Id. Becker filed an unsuccessful motion for reconsideration, to which he attached a new, signed notice of appeal. Id. The Supreme Court granted certiorari to address the question whether Becker's failure to sign his timely-filed notice of appeal required the Court of Appeal to dismiss his appeal. Id. at 762, 121 S.Ct. 1801.

The Court stated: "As plainly as Civil Rule 11(a) requires a signature on filed papers, [] so the rule goes on to provide in its final sentence that `omission of the signature' may be `corrected promptly after being called to the attention of the attorney or party.'" Becker, 532 U.S. at 764, 121 S.Ct. 1801. "`Correction can be made,' the Rules Advisory Committee noted, `by signing the paper on file or by submitting a duplicate that contains the signature.'" Id. (citation omitted). The Supreme Court further concluded that Rule 11's signature requirement was nonjurisdictional. Id. at 766, 121 S.Ct. 1801. Accordingly, in Becker, the Court reversed the dismissal of a pro se prisoner's appeal for failure to comply with Rule 11's signature requirement. The Court stated that the "[petitioner] proffered a correction of the defect in his notice in the...